Citation Nr: 1535645
Decision Date: 08/20/15 Archive Date: 08/31/15
DOCKET NO. 11-08 302 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to an initial disability rating in excess of 0 percent prior to December 13, 2011 and in excess of 30 percent thereafter for sinusitis.
2. Entitlement to an initial disability rating in excess of 0 percent prior to February 28, 2010 and in excess of 30 percent from April 1, 2011 for degenerative joint disease (DJD) of the right hip, postoperative total hip replacement.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Patricia Veresink, Counsel
INTRODUCTION
The Veteran had active duty service from April 1984 to April 2008.
This matter came before the Board of Veterans' Appeals (Board) on appeal from June 2008 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran has moved to Tennessee and that jurisdiction over the case has been transferred to the Nashville, Tennessee RO.
The Veteran testified at a hearing before the Board regarding his sinusitis claim in June 2015. A transcript of that hearing has been associated with the claims file.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In July 2008, the Veteran submitted a notice of disagreement with the initial 0 percent disability rating assigned in the June 2008 grant of service connection for right hip DJD. The RO provided the Veteran with a statement of the case in February 2009. The Veteran subsequently perfected his appeal in a March 2009 VA Form 9, in which he requested a hearing before the Board. After the appeal was perfected, the RO issued a supplemental statement of the case in June 2010 that granted an increased rating of 100 percent effective February 28, 2010 and a rating of 30 percent effective April 1, 2011.
As the Veteran did not limit his appeal to any specific level of disability, it is not considered a full grant of benefits and this issue is still in appellate status. Where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating, the Board is required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). Hence, this case is ready for appellate review. As such, the Board notes that on his March 2009 substantive appeal the Veteran requested a hearing before the Board. As this request was never addressed, the Board finds that a remand is necessary to schedule the Veteran with a hearing related to his right hip disability.
Regarding the issue of entitlement to a higher initial disability rating for sinusitis, the Board notes that during the June 2015 hearing, the Veteran specifically stated that he received treatment in the emergency room at St. Francis Hospital twice in 2011. The records should be obtained.
The Board also finds that a new VA examination is necessary to address the Veteran's sinusitis symptoms. The Veteran's last VA examination of the sinus condition was conducted in December 2011, over 3 1/2 years ago. There is therefore a question as to whether this provides sufficient information as to the current degree of severity of the condition. When the available evidence is too old for an adequate evaluation of the current degree of severity of a condition, VA's duty to assist includes obtaining a new VA examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Veteran has also asserted that the prior VA examination was insufficient as the examiner based his findings on the Veteran's symptoms after treatment with medication. The examiner should consider the holding in Jones v. Shinseki, which held "that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." 26 Vet. App. 56, 63 (2012). Therefore, the examiner should provide an opinion as to the severity of the Veteran's sinusitis both with and without medication. The examiner should additionally provide an opinion as to the number of incapacitating episodes requiring prolonged antibiotics treatment (lasting four to six weeks) and the number of non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting.
Accordingly, the case is REMANDED for the following action:
1. Attempt to obtain and associate with the claims file any outstanding VA treatment records, specifically any treatment records dated after March 2013.
2. After securing the necessary release from the Veteran, attempt to obtain and associate with the claims file any emergency room treatment records from St. Francis Hospital, specifically the noted two incidents from 2011 related to the Veteran's sinusitis.
3. Take all appropriate steps in order to schedule the Veteran for a hearing before the Board regarding his claim of entitlement to a higher initial rating for a right hip disability.
4. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of the Veteran's sinusitis. The examiner must review the claims file in conjunction with the examination.
Any medically indicated special tests should be accomplished, and all subjective complaints and objective symptoms must be documented. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria.
Specifically, the examiner should determine the number of incapacitating episodes requiring prolonged antibiotics treatment (lasting four to six weeks) and the number of non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. Additionally, the examiner should indicate the percentage of obstruction of the nasal passages on both sides and note the presence of any polyps. As noted above, the examiner should provide an opinion as to the severity of the Veteran's sinusitis both with and without daily medication. Additionally, the examiner should provide an opinion regarding the Veteran's sinusitis from May 2008.
All opinions must be supported by a complete rationale
5. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2014). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled VA examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable.
6. After completion of the above, the RO should review the expanded record and determine if higher initial ratings may be granted. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).